Marriage of Dugan-Gaunt, In re

• Decision Date: 12 April 1996
• Docket Number: No. 19175-0-II,R,DUGAN-GAUN,19175-0-II
• Citation: 82 Wn.App. 16,915 P.2d 541
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE of Arlynda K.espondent, and Chris Fred Gaunt, Appellant.

Page 16

82 Wn.App. 16

915 P.2d 541

In re the MARRIAGE of Arlynda K. DUGAN-GAUNT, Respondent,

and

Chris Fred Gaunt, Appellant.

No. 19175-0-II.

Court of Appeals of Washington,

Division 2.

April 12, 1996.

Publication Ordered May 10, 1996.

[915 P.2d 542] Appeal from Superior Court, Clark County; Barbara Johnson, Judge. No. 92-3-01173-2.

Arlynda Dugan-Gaunt, Vancouver, pro se.

Terry James Barnett, Rumbaugh Rideout & Barnett, Tacoma, for appellant.

ARMSTRONG, Judge.

In contemplation of divorce, Arlynda Dugan-Gaunt and Chris Gaunt executed a property distribution agreement. Chris agreed to give Arlynda 40 percent of his future workers compensation benefits. The trial court modified the dissolution decree, ordering Chris's workers compensation attorney, Terry Barnett, and the insurer to disburse 40 percent of the benefits to Arlynda. Barnett and Chris sought to vacate the order and the trial court denied the motion. Because the trial court lacked jurisdiction over Barnett, and had no authority to order Chris to pay a portion of his benefits to Arlynda, we reverse.

FACTS

Chris Gaunt and Arlynda Dugan-Gaunt executed a Because Chris moved out of state and remarried, Arlynda believed that he would not pay the benefits to her. Arlynda sought court modification of the dissolution decree. The trial court ordered, as to the benefits, that:

property distribution agreement in contemplation of their divorce. Under the agreement, Chris agreed to pay Arlynda 40 percent of any future workers compensation settlement from an on-the-job injury he suffered before marriage. The trial court subsequently entered a dissolution decree.

Any settlement proceeds shall be allocated and disbursed as follows:

....

(3) Of the remaining balance, if any, the disbursement should be as follows: first, to Arlynda Dugan Gaunt, the sum of $2,311.64 shall be paid; of the remainder, 40% shall be paid to Arlynda Dugan Gaunt, and the remainder to Chris Fred Gaunt or such other individuals as he may designate. Payments to Arlynda Dugan-Gaunt shall be made to her by Crawford & Company or [Chris's] attorney, if any, in care of the following address....

Crawford & Company adjusted Chris's compensation claim. In January 1995, Chris was awarded a permanent partial disability award. Chris and his worker's compensation attorney, Terry Barnett, then sought to vacate the modification order. The trial court denied the motion, and Chris and Barnett appeal.

ANALYSIS

Chris and Barnett argue that because RCW 51.32.040 prohibits the assignment of compensation benefits, the trial court's order is void. An order granting or denying a motion to vacate an order or judgment is reviewed for abuse of discretion. Northwest Land and Inv., Inc. v. New West Federal Sav. and Loan Ass'n., 64 Wash.App. 938, 942, 827 P.2d 334, review denied, 120 Wash.2d 1002, 838 P.2d 1143 (1992). A trial court, however, has no discretion when confronted with a void judgment. Allied Fidelity Ins. Co. v. Ruth, 57 Wash.App. 783, 790, 790 P.2d 206 (1990). If a judgment is void, the court must vacate. Allied, 57 Wash.App. at 790, 790 P.2d 206.

Under the Industrial Insurance Act, a worker may not voluntarily assign any compensation benefits to another person. RCW 51.32.040(1). ¹ Any such transfer is void. RCW 51.32.040(1); See also A. Larson, Workmen's Compensation Law, § 2.60 (1989) (claimant's lack of ownership in benefits seen as inability to assign benefits).

The trial court found that the dissolution decree, as a judicially created lien, was an exception to the statute. Washington courts, however, have held that disability payments that are in the nature of compensation for lost future wages are not an asset for distribution upon dissolution. In re Marriage of Kollmer, 73 Wash.App. 373, 375, 870 P.2d 978, review denied, 124 Wash.2d 1022, 881 P.2d 253 (1994); In re Marriage of Nuss v. Nuss, 65 Wash.App. 334, 343, 828 P.2d 627 (1992). The court has reasoned that:

[D]isability payments acquired before the disabled spouse has earned a vested right to retirement benefits are designed to compensate solely for loss of future earnings. To treat such disability payments as a community asset would unfairly and permanently burden those future earnings to the same extent as would an award of permanent alimony. We believe such disability payments should not be considered a community asset subject to division in a dissolution proceeding.

In re Marriage of Huteson, 27 Wash.App. 539, 543, 619 P.2d 991 (1980). Chris's compensation benefits were not before the court in the dissolution. See Huteson, 27 Wash.App. at 543, 619 P.2d 991. The decree, therefore, cannot be used to overcome the clear statutory...